State v. Gilroy

• Decision Date: 23 December 1981
• Docket Number: No. 65184,65184
• Citation: 313 N.W.2d 513
• Parties: STATE of Iowa, Appellee, v. Michael Otto GILROY, Appellant.
• Court: Iowa Supreme Court

Page 513

313 N.W.2d 513

STATE of Iowa, Appellee, v. Michael Otto GILROY, Appellant.

No. 65184.

Supreme Court of Iowa.

Dec. 23, 1981.

L. Jay Stein, Iowa City, for appellant.

Thomas J. Miller, Atty. Gen., John P. Messina, Asst. Atty. Gen., and Jack W. Dooley, County Atty., for appellee.

Considered by REYNOLDSON, C. J., and McCORMICK, McGIVERIN, LARSON, and SCHULTZ, JJ.

McGIVERIN, Justice.

Vincent R. Lalla was killed on March 12, 1979. His body was found at the Moose Lodge in Iowa City. His death was caused by two wounds inflicted with a shotgun. On November 15 defendant Michael Otto Gilroy was charged with first-degree murder in the slaying. §§ 707.1, .2, The Code 1979. Defendant was found guilty as charged by a jury and sentenced. He appeals and we affirm.

The State's evidence showed that defendant entered the Moose Lodge with a shotgun, killed Lalla, who was the manager, and then went to his ex-wife's house and hid the shotgun.

Defendant's appeal raises seven issues:

1. Did trial court err in requiring $50,000 cash bail rather than allowing defendant to post $15,000 cash plus a property bond?

2. Did trial court err in finding defendant nonindigent and appointing counsel pursuant to section 336B.6, The Code?

3. Did trial court err in the procedure used to grant several undercover law enforcement officers and defendant's minor daughter exclusion from expanded media coverage?

4. Should a parent-child testimonial privilege be recognized in Iowa?

5. Did trial court err in overruling defendant's motion for mistrial based upon prosecutorial misconduct?

6. Did trial court err in failing to submit defendant's proposed interrogatories to the jury pursuant to Iowa R.Crim.P. 21(2)?

7. Did trial court err in overruling defendant's motion for new trial on the basis of newly discovered evidence?

We find that each issue must be answered in the negative and therefore defendant's conviction affirmed.

I. Propriety of bail. Defendant contends trial court erred by fixing his pretrial bail at $50,000 cash rather than permitting the posting of a real estate bond plus $15,000 cash. Being unable to deposit the ordered bail, defendant remained in jail before and during trial.

Bail was initially fixed in this matter at $150,000 on November 15, 1979. On defendant's motion the district court subsequently modified the order relative to pretrial bail by providing that defendant could be released from custody to the supervision of the Department of Correctional Services upon posting a cash bond in the sum of $50,000. Defendant later moved to amend the already modified bail requirement order to allow relatives of defendant to post real estate worth $50,000 and, if necessary, an additional $15,000 cash as bail. Trial court refused to further modify its bail order.

Defendant took an appeal of the pretrial order imposing conditions of release pursuant to section 811.2(6)(b), The Code 1979. On January 24, 1980, a division of three justices acting for this entire court affirmed the district court's order. § 684.2, The Code.

Section 811.2(6)(b) provides, in pertinent part:

In any case in which a court denied a motion ... to amend an order imposing conditions of release ... an appeal may be taken from the district court. The appeal shall be determined summarily, without briefs, on the record made. However, the defendant may elect to file briefs and may be heard in oral argument, in which case the prosecution shall have a right to respond as in an ordinary appeal from a criminal conviction.... Any order so appealed shall be affirmed if it is supported by the proceeding below....

Section 811.2(6)(b) establishes a direct pre-trial appeal to this court as the remedy for allegedly illegal conditions of release. Defendant has availed himself of this remedy, and we have nothing further to review in that regard.

II. Finding of non-indigency and section 336B.6 appointment of counsel. Defendant asserts that trial court erred in finding that he was financially able to secure legal counsel but that he refused to do so, and in subsequently appointing two attorneys to represent him pursuant to section 336B.6, The Code. We disagree.

Prior to defendant's arrest his mother had secured counsel for him by payment of a $1,000 retainer to two attorneys. After services of counsel exhausted this sum, defendant applied for appointment of counsel at public expense. Iowa R.Crim.P. 26. The court found that defendant had failed to establish his indigency and denied appointment of counsel. Defendant then amended his application to include the option of appointment of counsel pursuant to section 336B.6. ¹ The court finally found that defendant, although financially able to secure counsel, refused to do so and therefore appointment of counsel was necessary pursuant to section 336B.6. The court appointed the two attorneys who had been representing defendant under the prior retainer arrangement. After trial, upon court order the county paid defendant's counsel $12,775.93. Therefore, our decision will determine whether the county will be able to attempt to recover sums it pays to court appointed counsel from defendant's assets. Defendant wishes to prevent his attorney fees from being a lien on his assets.

Upon our independent evaluation of the totality of circumstances in this case, we conclude trial court properly found defendant was financially able to secure counsel. § 336B.6. Defendant owned two major assets: a one-fourth interest in an Iowa City residential dwelling with an estimated equity value of $46,000 to $48,000; and a remainder interest in one-third of a one hundred acre farm, subject to the life estate of his sixty year old mother. He also owned a motor vehicle worth approximately $100 and had a $15 balance in a bank account. Defendant owed $3,575.03 to the Hills Bank and Trust Company, $1,300 to his mother ($1,000 of which may have been for the retainer paid), and $200 to the clerk of court for delinquent child support payments. He also would owe continuing child support.

In the past the factors we have weighed to analyze indigency were:

(1) real or personal property owned; (2) employment benefits; (3) pensions, annuities, social security and unemployment compensation; (4) inheritances; (5) number of dependents; (6) outstanding debts; (7) seriousness of the charge; and (8) any other valuable resources not previously mentioned.

Bolds v. Bennett, 159 N.W.2d 425, 428 (Iowa 1968); see also State v. Smith, 262 N.W.2d 567, 573 (Iowa 1978). The financial assets must be readily available. Ready availability denotes property "of such nature and net value it will be immediately accepted in lieu of or as a fee by a legally qualified attorney of petitioner's choice, ready and willing to serve." Bolds, 159 N.W.2d at 428.

Section 336B.6 was enacted by the legislature in 1970, 1970 Acts, 63 G.A. Ch. 1171, § 6, and was not available to a trial court faced with appointing counsel when we considered the criteria for indigency stated in Bolds. That statute also was not cited or considered in the Smith case, on which defendant relies.

We believe that the legislature intended section 336B.6 to apply to cases such as the present one, where a defendant with little present income or liquid assets has substantial assets that will be saleable sometime in the future, if not now. The practical problem comes in getting an attorney to presently accept such assets as a fee. Some attorneys may be willing to accept such assets as a fee. Defendant's attorneys were not. We conclude that defendant's assets were of such value that he was "financially able to secure counsel" for the purposes of section 336B.6. Section 336B.6, rather than the Bolds criteria, applies to the present factual situation. In this way defendant's attorney, who does not wish to accept defendant's assets as a fee, can be promptly paid for his services by the county. The county then can ultimately recover its payment when the court costs are paid, or it could levy on defendant's assets to satisfy the court costs.

We hold that trial court correctly determined defendant was financially able to secure counsel and in appointing counsel under section 336B.6.

III. Propriety of exclusion of witnesses from expanded media coverage. Defendant contends that trial court erred in granting four undercover law enforcement officers exclusion from expanded media coverage without a hearing to establish good cause for such exclusion. There was no error.

On January 1, 1980, Canon 3 A(7) of the Iowa Code of Judicial Conduct was suspended and Revised Canon 3 A(7) substituted therefor to allow expanded media coverage of judicial proceedings on an experimental basis. State v. Webb, 309 N.W.2d 404, 408 (Iowa 1981). Revised Canon 3 A(7) provides:

Subject at all times to the authority of the presiding judge to control the conduct of proceedings before the court to ensure decorum and prevent distractions and to ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the trial and appellate courts of this state shall be allowed in accordance with rules of procedure and technology promulgated by the Supreme Court of Iowa.

Rule 2(c) states: "Such media coverage of a witness may be refused by the judge upon objection and showing of good cause by the witness." Rule 3(c) provides:

A party to a proceeding objecting to expanded media coverage under Rule 2(b) shall file a written objection, stating the grounds therefor, at least three days before commencement of the proceeding. All witnesses shall be advised by counsel proposing to introduce their testimony of their right to object to expanded media coverage, and all objections by witnesses under Rule 2(c) shall be filed prior to commencement of the proceeding.

All objections shall be heard and determined by the judge prior to commencement of the proceedings. Time for filing of...